Any other year, the D.C. Circuit’s March 31 decision in Dhiab v. Trump would have probably received a lot more attention–especially in suggesting that the media (and, through it, the public) may not have a First Amendment right of public access to habeas proceedings such as the Guantánamo detainee litigation. I can’t speak for others, but I finally got around to reading it over the weekend–and came away more than a little perplexed. The bottom line is simple enough: The Court of Appeals reversed orders by the district court that would have required the public disclosure of approximately 30 videotapes of the government forcibly extracting hunger-striking detainees from their cells and force-feeding them. But each of the three panel members (Judges Randolph, Rogers, and Williams) wrote separately to explain why. Because there are three different rationales, there’s no controlling opinion on the central question of when (if ever) the First Amendment creates a qualified right of public access to such information. But given that public access has already been a big issue in the Guantánamo military commissions, there’s every reason to believe this won’t be the last time the subject comes before the Court of Appeals–and, as such, every reason to explain just how little precedential weight the Dhiab ruling will (and should) receive. 

I.  The Issue

As folks may recall, the Dhiab litigation came to a head with a series of rulings by Judge Kessler in 2014 and 2015, including an October 2014 decision granting a request by various media organizations to unseal redacted versions of videotapes arising out of forcible cell extractions (FCEs) of hunger-striking detainees in order to force-feed them. Judge Kessler’s October 2014 ruling is worth reading in full, but in a nutshell, it concluded as follows:

  1. Following an earlier ruling by Judge Hogan in a detainee case, that the qualified First Amendment right of public access to judicial proceedings articulated by the Supreme Court in Press-Enterprise II applies to Guantánamo habeas petitions;
  2. That the fact that the relevant information is classified doesn’t bear on whether there is a right of access ab initio, but rather on whether the government has carried its burden to overcome the right of public access;
  3.  That, once the right of public access applies, courts can and should still use “narrowly tailored measures to protect compelling interests, like the safeguarding of sensitive information”;
  4. That, applying such narrow tailoring, “when the sealed facts are already public, maintaining documents under seal is only appropriate when, despite what the public already knows, the documents’ release would still give rise to a substantial probability of harm”; and
  5. That release of the videotapes, subject to certain redactions, would not give rise to a substantial probability of harm on their own.

Thus, Judge Kessler ruled, once the parties agreed on the redactions she held to be necessary, the videotapes could be released. The government’s initial effort to appeal was dismissed for lack of jurisdiction, on the ground that, “unless and until the district court approves the Joint Proposal and orders the unsealing and release of the redacted videotapes, the cat will remain comfortably in the bag.” Once that happened, Judge Kessler eventually ordered the recordings unsealed on or before January 11, 2016, but granted a stay pending the government’s appeal and the media organizations’ cross-appeal, which is what produced the D.C. Circuit’s March 31, 2017 ruling.

II.  The Three Opinions

Each of the three panel members wrote separately. In his opinion concurring in part and concurring in the judgment, Judge Williams joined Part III of Judge Randolph’s nominal opinion of the court, which held that, even if the qualified First Amendment right of access applied, the government had carried its burden in showing that keeping these videotapes sealed was “narrowly tailored” to vindicate the government’s compelling interests. There are reasons to quibble with this analysis (including Judge Randolph’s refusal to actually engage with Judge Kessler’s explanations for why the government’s arguments weren’t narrowly tailored), but at least it’s case-specific.

The real fight, as it turns out, is over Part II of Judge Randolph’s opinion, which concluded, apparently for only himself, that both Judge Kessler and Judge Hogan were incorrect as a matter of first principles–that there is no qualified First Amendment right of public access to habeas proceedings, including the Guantánamo litigation. To give a flavor of Judge Randolph’s argument, here are some of the high points:

  1. “The intervenors’ claim that the Constitution requires this national security information, properly classified as “SECRET,” to be divulged to the world because a lawyer representing a Guantanamo detainee filed some of the recordings under seal in his client’s now-moot habeas corpus action is untenable.”
  2. The qualified First Amendment right recognized in Press-Enterprise II makes less sense in civil cases where the government is not the moving party–analogizing to the state secrets privilege and the principle that “plaintiffs suing the government civilly have no right of access to classified information pertinent to the litigation.”
  3. “In habeas corpus cases, there is no tradition of public access comparable to that recounted in Press-Enterprise II with respect to criminal trials.”
  4. “[T]here is no tradition [in U.S. law] of publicizing secret national security information involved in civil cases, or for that matter, in criminal cases. The tradition is exactly the opposite.”
  5. Thus, “Press-Enterprise II therefore does not apply to this case and neither the intervenors nor the public at large have a right under the First Amendment to receive properly classified national security information filed in court during the pendency of Dhiab’s petition for a writ of habeas corpus.”

Judge Rogers, in contrast, vigorously disagreed with Judge Randolph, suggesting that his First Amendment analysis wrongly conflated the rights of civil plaintiffs with the right of the press (and, through it, the public) to access judicial proceedings, and wrongly singled out Guantánamo habeas proceedings from habeas cases, more generally. In her words:

  1. “The distinction drawn by the Court [between access to classified information in civil vs. criminal proceedings] arose in the context of protecting the rights of the accused, not to indicate that the public’s right of access is more robust in criminal than in civil proceedings. Because the First Amendment right of access is enjoyed by the public, whether the ‘government is … the moving party’ has little bearing on the First Amendment analysis.”
  2. Contra Judge Randolph’s analysis of historical habeas practice in England, “there was a well-settled expectation that habeas proceedings would be open to the public when the courts were in session.”
  3. The Press-Enterprise II test should be applied to the general type of proceedings, and not a specific subset of cases–“viewing Dhiab’s habeas proceeding as falling within the tradition of open habeas proceedings generally, rather than singling out habeas petitions filed by Guantanamo detainees for a separate test.”
  4. “Because criminal trials and habeas proceedings are designed to protect against abuses of Executive power and guard individual liberty, why would the First Amendment right of access apply differently in the two proceedings?”

Finally, Judge Williams ends up somewhere between Judges Randolph and Rogers on whether there’s a First Amendment right in the first place, suggesting that “choices as to level of generality for the relevant proceedings (and between proceedings and documents), and the scope of the relevant historical inquiry, can easily be decisive, both in shifting the burden of persuasive and in its rigor,” but emphasizing that there’s no need to resolve the issue in Dhiab because of his agreement with Judge Randolph that, even if there is such a right, the government had met its burden to overcome it.

III.  The Implications

I’m sure it won’t surprise the two of you who have made it this far to learn that I find Judge Rogers’s analysis far more persuasive on whether there even is a First Amendment right of public access to habeas proceedings. First, and most importantly, I think she is unquestionably right that the right has to be defined at a level of generality–where the question is access to habeas proceedings in general, and not habeas proceedings by particular classes of prisoners, specifically. The Supreme Court itself has applied one rule to preliminary hearings in criminal cases, even though there are widely different features to such proceedings in different states (and the federal system). So too, here. That actually does most of the work in responding to Judge Randolph, because virtually all of his arguments against such a First Amendment right are national security-specific (and therefore make more sense as providing the compelling interest sufficient to overcome the assertion of the right).

Second, even if you’re not convinced by the level-of-generality point, Judge Rogers also (rightly, in my view) highlights those features of habeas petitions that more closely resemble criminal cases as opposed to ordinary civil ones. Thus, as she notes while quoting from various Supreme Court opinions, “[t]o the extent the First Amendment embraces a right of access to criminal trials, it is to ensure that th[e] constitutionally protected discussion of governmental affairs is an informed one. Because the writ of habeas corpus is an important part of our Constitution and a ‘vital instrument for the protection of individual liberty,’ the public’s qualified right to informed discussion about its government would apply no less in these proceedings.” Thus, to cut to the chase, it seems to me that there’s just no question that there ought to be a qualified First Amendment right of public access to habeas proceedings, especially in the executive detention context–and that all of the work should instead focus on whether the government can carry its burden for overcoming assertions of that right, and closing the relevant aspects of the proceedings, including keeping videotapes such as those at issue in Dhiab under seal. Judge Randolph disagrees, but, thanks to Judge Williams, writes only for himself on the key point.

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Why does all of this matter? First, and most significantly, it’s not terribly hard to fathom how public access to Guantánamo habeas cases could once again become an issue, especially when (not if) the Trump administration sends new detainees to Cuba. But public access has also already been a significant issue before the Guantánamo military commissions–especially in the context of the 9/11 trial. Although some of those cases will reach the D.C. Circuit on post-conviction appeal (where it’s possible that even Judge Randolph would concede that the First Amendment right of public access applies), some already have arisen via habeas–and others likely will down the road. When that happens, it will be crucial for those courts to recognize that (1) there’s no controlling opinion in Dhiab on whether there even is a qualified First Amendment right of public access to such proceedings; and (2) as a matter of first impression, there are compelling reasons why there should be–even if it can and should be overcome in individual cases.

Image: John Moore / Getty Staff